Well this is it: We’re going to the Supreme Court. Here’s a quick explanation of what today’s announcement that the Court is taking on Prop 8 and the Edie Windsor case means—and what to expect from the case over the next few months.

Nice vid, but it has a pretty romantic view of the law: The Equal Protection Clause requires nothing except what the justices say it requires.

I’m not banking on a sweeping ruling. I bet we’ll carry the day 5-4 on both cases, but neither will read into the Constitution a right to same-sex marriage. Still a win, but I’m not holding my breath that the Roberts Court will fully vindicate us until Obama gets to replace a justice or two.

@jwrap They don’t have to read a right to same-sex marriage. They need only affirm the existing part of the Constitution requiring Equal Protection under Law as it pertains to marriage laws. For example, the Loving case wasn’t about a right to white-black marriage. It was about the right to Equal Protection under Law with regards to marriage.

Folks in the nine USA states don’t get same-sex married; they get married, and do so without discrimination in regards to gender or sexual orientation.

@Daniel-Reader: My understanding was that the 9th Circuit decision distinguished California specifically on the grounds that it took away a right that once existed, which they said was different from not granting it in the first place (formalistic acrobatics as far as I’m concerned). If the decision is affirmed, it will affect only California I think.

You could argue that Loving is distinguishable on the grounds that the VA statute prohibited mixed-race marriages only when one of the spouses was white, but did not prohibit say a black/Latino marriage or a Latino/Chinese marriage. Thus, the only basis for the law was white supremacy, which was repugnant to the 14th Amendment, which was written to ensure that the equal protection of the laws was not denied to blacks during Reconstruction. Prop 8 applies equally to all races, and unless the Court finds either a fundamental right to marriage in the Constitution or that gays are a suspect or quasi-suspect class for the purposes of equal protection, the ruling will be very narrow.

Dec 9, 2012 at 6:33 am · @Reply ·

Elloreigh

The orders the court put forth in their announcement that the cases would be granted cert suggest that the Court is looking for a way out of this without having to find that sexual orientation is a suspect class or applying heightened scrutiny. If they find in either case that those appealing the lower court rulings don’t have standing, then the court may use that technicality to say that the refusal of the named defendants to appeal & defend those rulings themselves removes the cases from the Supreme Court’s jurisdiction and that those lower court rulings will stand.

I find it unlikely that the Court is going to make any broad rulings that would overturn the amendments of a majority of states banning recognition of same-sex couples’ marriages. The legal environment today is very different from the time when the Loving case was decided. Moreover, I don’t think we can expect the Court to pick a fight with the states over a social issue like marriage when the Constitution neither reserves the regulation of marriage to the federal government, nor prohibits it from state governments.

Dec 9, 2012 at 10:54 pm · @Reply ·

Daniel-Reader

It’s not that complex. The court need only affirm there is no rational basis for excluding same-sex couples from marriage laws; that the reasons often proffered are merely a cloak for animus against gay people, and animus is not a rational reason for excluding Americans from Equal Protection under Law even under the simplest scrutiny.